NO to Software Patents!

Short Introduction

A patent aims at protecting innovation by giving an inventor a
temporary monopoly allowing him to sell his invention. In the software
area, patents are useless, since the development costs and times are much
lower than for industrial processes; the protection given by the copyright
is sufficient, and even better, as it is free. In practice, the software
patents (in the USA and in Japan, where they have a
legal existence) precisely have the opposite effect. Many trivial or
non-technical patents
based on prior art (see below) are used to threaten companies. These
companies could contest the validity of these patents in a court, but
such lawsuits take a long time (several months or years) and cost a lot
of money; in general, they prefer to pay a fee, without any legal basis.
Individuals and, in particular, developers of free software could be
threatened too.

The software patents deal with general ideas consisting of small
parts of software (and not with complete software). Thus it is difficult,
or even impossible, to write software without being concerned by numbers
of patents based on elementary ideas (the
Patented European
webshop is a good example). And it is practically
impossible to check (see
the
IBMvs Sun Microsystems lawsuit
in the 1980s, for instance).

Who benefit by the software patents? Mainly large corporations, that
have a lot of money and can apply for many patents on one hand and support
the lawsuit costs on the other hand. This is in accord with
what
BillGates
wrote in 1991.
Even an owner of a really original
patent could not benefit by it without huge lawsuit fees, because his
software would probably infringe some trivial patents. Small companies
that own patents (even trivial ones) but have no products may also benefit
by threatening other companies, as they have nothing to lose.

Europe, France and Software Patents

In January 2002, the European Commission presented
a proposal to harmonize the situation in Europe, allowing software
patents.

On 24 September 2003, the European Parliament added
amendments to this proposal, thus rejecting software patents; the
text was approved for by a large majority.

But on 18 May 2004, the Council of Ministers approved a text
allowing full software patentability, by a slim majority, thus ignoring
the vote by the Parliament. Note the
way in which the
Irish Presidency pressed Denmark for her votes, to obtain this
majority. At that time, Spain, Italy, Austria and Belgium did not support
that position.

In July 2004, the Dutch parliament passed a motion requesting
the Dutch government to stop supporting the Council text.

December 2004:
Despite the initial opposition of several countries and the current absence
of majority in favor of the text of 18 May, the adoption of the directive
was added as an A-item (that is, without debate or vote) of
a Council meeting on the environment! And this A-item was added only 2 days
before the meeting, though the Council's rules of procedure demand a 14-day
delay.

7 March 2005:
The Council Presidency
adopted the directive of 18 May 2004 as an A-item,
despite Denmark's request (followed by other countries) for a
B-item (with discussions). The text will then return to the
European Parliament for a second reading, but the rejection of the text or
amendments will need an absolute majority (in particular, an absence counts
as a vote in favor of the Council's directive).

According to a report by PriceWaterhouseCoopers, The Netherlands, 2004 (Rethinking the European ICT Agenda, paragraph 342 page 50):
There are particular threats to the European ICT industry such as the current discussion on the patent on software. The mild regime of IP protection in the past has led to a very innovative and competitive software industry with low entry barriers. A software patent, which serves to protect inventions of a non-technical nature, could kill the high innovation rate. However, opinions on software patent in its current proposed form vary a lot. Many large companies operating on a global scale, including European ones, seem to be in favour of a software patenting regime. But most small enterprises are strongly opposed. Only very few European companies have prepared themselves for the consequences of a software patent regime. It raises the question how the introduction of the European software patent interacts with a European strategy based on widespread use of ICT's.

Patents and Linux, by TimBray (August 2004). A small quote: In software, assume that everything is already patented. You can't build anything, no matter how new it is, without infringing someone's patent.